Retaliation against whistleblowers: a new case from the Massachusetts Appeals Court


I've been speaking with a lot of people recently who have been subject to retaliation resulting from their whistle-blowing activities. The question of whether there are legal protections for that whistle-blowing activity, and against the resulting retaliation, is, like many employment law matters, complicated.

While employees in the private sector have some range of specific protections in this regard, public employees have additional special rights arising directly from the Federal and/or State constitutions.

That said, legal protections against retaliation are not as straightforward as many people believe. The result is that an employee in a whistle-blower situation ought to proceed carefully and seek good counsel. A case out of the Massachusetts Appeals Court last week provides one good example of why.

First, I'll sum up what happened.

Back in 2010, Jude Cristo was the payroll and human resources director at the Worcester County Sheriff's Department. He began noticing things in the course of performing his job that concerned him. Specifically:

  • He noticed that the assistant deputy superintendent -- who himself was running for sheriff in the ongoing election -- was not performing his human resource duties. Instead, he was away campaigning for some portion of days while also marking himself present at the department. Cristo -- the human resources director, remember -- complained to his boss, the then-acting sheriff, about it.

  • Cristo observed a captain campaigning for the assistant deputy superintendent during work hours. Cristo also complained to his boss about this, concerned that not only was it interfering with the captain's payroll duties, it was interfering with Cristo's ability to perform his own payroll duties.

  • Lastly, Cristo noticed missing radios that were the property of the sheriff's office, which he had some responsibility for keeping tabs on. He mentioned it to his boss.

Several months later, a different candidate won the election for sheriff. That person retained Cristo's boss. Within days of the new sheriff's inauguration, Cristo was called in to speak with the boss, and was told his position was being eliminated. Cristo was asked to resign. When he refused, Cristo was handed an envelope with a termination letter and final paycheck.

Cristo sued, in part alleging that the sheriff retaliated against him by terminating him for exercising his rights under the First Amendment to the US Constitution for having made the above complaints.

The case, like many, went up and down in the courts. Six years after his termination, it was role of the Massachusetts Appeals Court to review whether Cristo's First Amendment rights had been violated.

For guidance, the Appeals Court looked to the US Supreme Court's 2006 decision in Garcetti v. Ceballos, among other cases.

In Garcetti, the United States Supreme Court clarified the law regarding qualified immunity by declaring that when a public employee like Cristo makes a statement pursuant to his official duties, he is not speaking as a citizen in the exercise of First Amendment rights...

[Citing Garcetti:] "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

What does that mean?

In Cristo's case, it meant his First Amendment claim was dismissed.

Because he made the complaints in the course of his duties, for which his supervisors have an independent right to review and evaluate, these statements are made outside the scope of the First Amendment, and thus they are not protected.

These free speech, whistle-blowing and retaliation cases are complicated, however.

One thing that may have made a difference is how and to whom Cristo complained.

While Cristo complained solely within his workplace, another leading US Supreme

Court case a few decades older than Garcetti deemed a teacher's First Amendment rights to have been violated when the teacher was terminated for writing and publishing in a newspaper a letter criticizing the Board of Education's allocation of school funds, among other concerns related to school operations. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

The moral of the story?

Be careful. And seek good counsel in order to best protect yourself. Contact me if I can help.

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